The constitutional dilemma in the UK

Constitutional Futures Initiative
Publication Date

Why do we have a problem with the UK constitution?

Professor Michael Keating FRSE discusses the constitutional dilemma in the UK, the limitation of its understanding (or conventions) and the problem of trying to write it down.

Current UK constitutional dilemma


 Constitutional Futures Initiative

An impartial and expert reflection on Scotland’s constitutional options and how these have been reshaped by Brexit and Covid.

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Please note transcripts are automatically generated, so may feature errors.

A constitution is a set of rules about how government and politics should operate in any given country. It’s about the relationship between the government, the parliament, different levels of government, about the relationship between the government and the citizen, about the limits of government.

And in most countries, this is in a single document. It’s all written down. And there’s a court, a constitutional court or a Supreme Court to uphold and enforce the constitution, even against the government or the parliament of the day.

The United Kingdom is a little bit unusual because we don’t have that kind of a constitution, but we do have a constitution. It’s just not all written down. All in one place. Instead, the fundamental principle of the British constitution is the principle of parliamentary sovereignty. And this simply means that the Westminster parliament can do pretty much whatever it wants. There is no rule above the rule of parliament. There’s nothing to govern or restrict
what parliament can do.

It’s an unusual system, but it’s not quite like that. It’s not that Parliament has an arbitrary power because some things are written down. It’s just that Parliament can change those things. But above all, the constitution depends on understandings or what we call conventions.

That is, there are understandings about what is acceptable and what is not acceptable. Some of these are really quite binding. For example, the King can’t refuse to sign an act of parliament. That’s just a convention. But if it happened that the King refused to sign an act of Parliament we would be in a very serious position. Other of these conventions or understandings are a little bit more nebulous. And as somebody once famously said, some of the understandings
are not actually understood. And that’s why we have a problem with our constitution.

What are the limits to what governments can do? Now, traditionally, this didn’t really matter because there was a pretty broad consensus, except in places like Northern Ireland, obviously, about the nature of the constitution, the role of government, the importance of parliament, the fact that governments change from time to time and there was a smooth handover and that the monarchy exercised restraints. But that’s begun to change in recent years. And there’s been a questioning about how adequate our unwritten constitution is.

And above all, this has happened since the advent of devolution at the end of the 20th century, which represented a change in our constitution in one sense, but in other sense, no change at all, because according to the old Westminster formula, as we call it, devolution simply means that Westminster has used its sovereign power to lend powers and competences to Scotland, Wales and Northern Ireland. But it could take them back at any time and it could override them at any time.

But the other interpretation of devolution is that it is a new constitution that Scotland, Wales and Northern Ireland have powers that really do belong to them. Now this actually goes back a long way in Scotland. There’s been a debate about the union since it was established 300 years ago, a questioning of Westminster sovereignty. None of that really mattered until quite recently because there have been a series of issues now in which there is a clash between the Westminster interpretation of the constitution that is, parliamentary sovereignty and supremacy are all that matters.

And the other interpretation of the constitution, which is that is a union of nations which do have their own constitutional powers, and that there are conventions surrounding the devolution settlement, which should be respected. The binding sort of conventions rather than the sort that don’t really matter. And particularly since Brexit, there’s been a number of cases in which this has come up.

Does Scotland have the right to have an independence referendum?

Is this an inherent right in being part of the Union?

Can Westminster take back powers away from the Scottish Parliament?

Can it pass legislation undermining the competencies of the Scottish Parliament?

Can the Northern Ireland Protocol be reconciled with the Acts of Union?

All of these things have gone to the courts, but the courts have said that’s none of our business. Westminster sovereignty is all that matters. And this has caused a serious questioning about the nature of our constitution and why some conventions seem to be enforceable and other conventions don’t really seem to matter. That’s why we’ve got a serious constitutional problem in this country, because the understandings are no longer understood and we no longer have that shared understanding of how politics does work. And should work.

Some people say, well, let’s have a written constitution. The answer would be write it all down and for once, make sure that Westminster has to respect other parts of the constitution, that Westminster cannot be all powerful. The problem with that, of course, is that in order to write it all down, you would have to agree on what should be written down. And if you already agreed, you wouldn’t need to write it down. So if faced with an agonizing constitutional conundrum that people have different understandings of the constitution, this can only be resolved by politics.

Our constitution is fundamentally political. But we’re not going to resolve this question any time in the immediate future. I mean, you can expect the constitutional question, which we didn’t talk about very much 50 years ago, to be at the centre of British politics for some time to come.